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Special franchise of joint-stock company.

and, nevertheless, the joint-stock company can have special franchise. We will consider two situations in which it occurs. First, it is cases when as a condition of granting of the licence for employment by a certain kind of activity the demand of realisation of this activity as exclusive (bank, insurance, etc.) is made.
So, item 3 of the Law of the Russian Federation «About commodity exchanges and exchange trade» 338 establishes, that the stock exchange cannot carry out the trading, trading-intermediary and other activity which directly has been not connected with the organisation of exchange trade, and also has not the right to carry out contributions, to get shares (shares), actions of the enterprises, establishments and the organisations if the last do not set as the purpose realisation of exchange trade. Owing to item 3 instructions ch. 1 item 49 GK the Russian Federation, the joint-stock company, intending to be engaged in such activity, will possess special franchise. G.Tosunjan and A.Vikulin prove position, that realisation of an exclusive kind of activity is not settled by a special franchise principle, and, hence, it is necessary to enter concept of the exclusive legal capacity which can be designated as the legal capacity «more specially special» 339. Existence of the exclusive legal capacity as independent kind of the civil legal capacity of the legal person, and as commercial, and nezakon the Russian Federation from February, 20th, 1992 N 2383-1 «About commodity exchanges and exchange trade»//RG from May, 6th, 1992 339 Tosunjan G, Vikulin A.Iskljuchitelnaja the bank legal capacity//the Economy and the right. 1999. № 5. With. 59. Commercial, gives reason for A.Slugin.340 It is necessary to notice, that acts really unequally define possible volume of special franchise. Article 5 FZ «About banks and bank activity» 34 ' forbids the credit organisation to be engaged industrial, trading and insurance деятельностью342. That is the law definitely specifies concrete kinds of activity which the credit organisation cannot carry out. Hence, banks and not bank credit organisations can be engaged in other kinds of activity not forbidden to combination, for example, in sphere of the reference of securities about what directly speaks item 6 of the named law and also to make other not forbidden transactions (item 5), On the contrary, Position about licensing of various kinds of professional work on securities market РФ343 contains the general instruction that professional work combination on a securities market with other kinds of enterprise activity if such possibility is not provided by the legislation of the Russian Federation is not supposed. Position point 5 establishes, that combination of following kinds of professional work on a securities market is supposed: Broker activity, dealer activity, activity on management of securities and depozitarnoj activity; Clearing activity and depozitarnoj activity; Activity on the trade organisation on a securities market and clearing activity. Activity on management of investment funds, share investitsion - 340 Slugin A.A.civil the legal personality of legal bodies: Dis.... kand. jurid. Sciences: 12.00.03. - Ryazan, 2003. - With. 7. 34 FZ from December, 2nd 1990 g, N 395-1 «About banks and bank activity»//Sheets SND RSFSR from December, 6th, 1990 № 27 items 357.
342 Such interdiction can be bypassed actually, having created the independent legal body, 100 % of which actions (shares) will be in the bank property. This reception is often used by banks to have possibility to realise the put in pawn property, at nonpayment of credits, i.e. for realisation of trading activity. 343 It is approved by the Decision of the Federal commission on a securities market from November, 23rd, 1998 № 50//the Financial newspaper, December, 1998, № 51.; the Order of licensing of kinds of professional work See a securities market of the Russian Federation (utv also. The decision of Federal Commission on Securities from August, 15th, 2000 № 10)//RG from October, 24th, 2000, № 205. nymi funds and not state pension funds it is authorised to combine only with activity on confidential management of securities and activity on management of insurance reserves insurance компаний.344 That is, the given normative acts directly establish what kinds of activity it is possible to combine with authorised activity. If such combination is not provided by the legislation, it means it is forbidden. Even within the limits of one general view of activity the combination interdiction is possible. The law of the Russian Federation «About the organisation of insurance business in the Russian Federation» 345 in item 6 establishes, that insurers have the right to carry out or only insurance of objects of the life insurance, or only insurance of objects property and the life insurance provided by subparagraph 2 of point 1 of article 4 - the interests connected with injury of a life, health of citizens, rendering of medical services by it (accident insurance and illnesses, medical insurance). Insurace brokers have the right to carry out other activity not forbidden by the law connected with insurance, except for activity as the insurance agent, the insurer, the overcautious person (item 8), In some cases the legislator establishes really "exclusive" legal capacity. In these cases the joint-stock company with special franchise can carry out only one kind of enterprise activity and any another. So, the joint-stock investment fund according to FZ «About investment funds» 346 has not the right to carry out other kinds of enterprise activity (item 2) that means an interdiction in general any combination. FZ «About auditor activity» 347 also establishes, that to the auditor organisations and individual auditors other is forbidden to be engaged any before - 344 Point 3 of Position on activity licensing on management of investment funds, share investment funds and not state pension funds »(utv. The governmental order of the Russian Federation from July, 4th, 2002 № 495)//SZ the Russian Federation from July, 8th, 2002, N 27, item 2707. 345 The law of the Russian Federation from November, 27th, 1992 N 4015-1 «About the organisation of insurance business in the Russian Federation»//RG from January, 12th, 1993 346 FZ «About investment funds» from November, 29th, 2001 № 156-FZ//SZ the Russian Federation from December, 3rd, 2001, N 49, item 4562. Inadmissibility of realisation of other kinds of enterprise activity is one of licence requirements (conditions) at realisation of activity of investment funds, 3 FZ «About auditor activity» from August, 7th, 2001 № 119-FZ//SZ the Russian Federation from August, 13th, 2001, N 33 (the Part I), item 3422. prinimatelskoj activity, except carrying out of audit and rendering of services accompanying it (p, 7 items 1). The hypothecary agent carries out the activity as исключительную.348 Hence, character of the full legal capacity of the legal person can be the general or special, that is defines quality of the full legal capacity (the general and special franchise). The legal capacity volume is the quantity indicator reflecting number of carried out kinds of activity (one kind, some kinds of activity). As the general legal capacity allows to carry out activity any kinds, a category «legal capacity volume» is applicable only to special franchise. Thus, special franchise of joint-stock company, statutory, first, can be different volume - realisation of one, or several kinds of activity is authorised. Secondly, the volume of such legal capacity can be defined in the legislation by various ways: By instructions that authorised activity cannot be combined with others defined, named in the law, kinds enterprise деятельности* On the contrary, the permission to combine authorised activity only with those kinds of enterprise activity which are directly specified in normative acts. By means of full prohibition any combination of authorised activity with any other. The given position of the law as already it was specified above, has allowed some authors to come to conclusion, that the legal body basically cannot possess the universal legal capacity. As to combine some kinds of activity it will be always impossible to be, hence, the legal capacity специальной.349 J.V.Filatov suggests to define the legal capacity of legal bodies to functional signs, for example: the bank legal capacity, exchange, the legal capacity of the insurance organisations, etc., according to principles of the general and 348 FZ from November, 11th, 2003 N 152-FZ «About hypothecary securities»//SZ the Russian Federation from November, 17th, 2003 N 46 (a part II) item 4448. 349 Tsirulnikov V. N see, for example. Definition of the legal person as subject of civil law. - Volgograd, 2001. P. 59. Special franchise, 350 It is necessary to notice, that at joint-stock company creation (as well as societies with limited liability or societies with additional responsibility) there is wider "choice" of kinds of activity, rather than at creation of economic associations and co-operative society. The acts regulating separate kinds of activity, make special demands to the organisation-legal form of the legal person, wishing to carry out such activity. For example, named FZ «About banks and bank activity» establishes in item 1, that the credit organisation «is formed as an economic society». By position about licensing of various kinds of professional work on a securities market of the Russian Federation the licence for realisation broker, dealer, to activity on management of securities «can be given out the commercial organisation created in the form of joint-stock company or a society with limited liability» (item 6.1). Depozitarnuju activity legal bodies created in the form of joint-stock company have the right to carry out only, societies with limited liability, the noncommercial organisation, and also federal state unitary предприятия.352 FZ «About financial and industrial groups» supposes creation of the central company of financial and industrial group in the form of an economic society, and also association, союза.353 FZ «About a securities market» 354 establishes, that the legal body can carry out stock exchange activity if it is noncommercial partnership or joint-stock company (item 11). Such advantages in favour of economic societies are caused by that joint-stock companies and societies with limited liability (their analogues) in 350 Filatov JU.V.feature of the juridical personality of bank / the Legal status of subjects of enterprise activity / Otv. red., sost. Professor B.C. White. Ekaterinburg, 2002. With. 139-140. 351 The decision of the Federal commission on a securities market from November, 23rd 1998 g, N50 «About the Position statement about licensing of various kinds of professional work on a securities market of the Russian Federation» 11 Financial newspaper, December 1998 r., N 51. Item 8.1. Positions about licensing of various kinds of professional work on a securities market of the Russian Federation № 50. 353 FZ from November, 30th, 1995 N 190-FZ «About financial and industrial groups»//SZ the Russian Federation from December, 4th, 1995 N 49, item 4697. 354 FZ from April, 22nd, 1996 N 39-F3 «About a securities market»//SZ the Russian Federation from April, 22nd, 1996 N 17, item 1918. All countries admit legal bodies, unlike other forms of business, such as associations (for example, as a rule, the private association does not admit the legal body). According to M.I.Kulagin, «these organisation-legal forms of conducting enterprise activity act as the most finished, consecutive embodiment of institute of the legal person. Some bourgeois authors reach even an identification of the legal person and joint-stock company» 355. However at the legislation there are also return examples. The volume of the legal capacity of the legal person is limited in connection with a choice its founders of the organisation-legal form of joint-stock company. FZ «About auditor activity» 356 forbids to create the auditor organisations in the form of open joint-stock company (ch. 3 items 4 of the Law). The licence of the settlement depositary has the right to carry out only the noncommercial organisation, the organisation created in the form of noncommercial партнерства.357 has the right to carry out functions of the clearing centre only It is necessary to notice, that the joint-stock company form (or its analogue) has been selected for creation nadnatsionalnogo the legal person within the limits of the European Community. In 1970 the European Commission has suggested to accept the statute of the European joint-stock company. On October, 8th, 2001 Council of the European Union has approved Regulations № 2157/2001 about the Charter of the European Company. The regulations have become effective since October, 8th 2004 года.358 In the presented table № 5 it is underlined what kinds of enterprise activity can carry out legal the person of this or that organizational - legal form. Tab. 5. Organization-legal forms legal and kinds of carried out activity. 355 Kulagin M. I. The selected works. M, 1997. With. 47. 356 FZ «About auditor activity» from August, 7th, 2001 № 119-FZ//SZ the Russian Federation from August, 13th, 2001, N 33 (the Part I), item 3422. 357 Points 8.2, 9.1 Positions about licensing of various kinds of professional work on a securities market of the Russian Federation (utv. The decision of the Federal commission on a securities market from November, 23rd, 1998 N 50)//the Financial newspaper, December, 1998, N51. 358 See: Asoskov A.V.legal of the form of participation of legal bodies in the international commercial turn. - M, 2003. With. 250; the Right of the European Union: the Textbook dl »high schools/under the editorship of S.JU. Kashkina. TH., 2003. With. 518. \the Form \ JUL Kind \dejatel-\nosti \General partnership KT Joint-Stock Company Open Company ODO, Open Society I RCH Unitary predpr the personal computer j 1 Public and religious organiz. Fund Establishment of Association and the unions Noncommercial partnership Joint-stock investment фонд359 + Auditor организация3 + + + + + + Bank and other credit организация361 + + + + Activity on management of investment funds, share investment funds and not state pension fund - ми362 + + + + Dealer, broker the figure - + + +.... 339 Items 2 FZ from November, 29th, 2001 N 156-FZ «About investment funds»//SZ the Russian Federation from December, 3rd, 2001, N 49, item 4562. 360 Item 4 FZ from August, 7th, 2001 N 119-FZ «About auditor activity»//SZ the Russian Federation from August, 13th, 2001, N 33 (the Part I), item 3422. 361 Item 1 FZ from December, 2nd, 1990 N 395-1 «About banks and bank activity»//Sheets of congress of People's Deputies of RSFSR from December, 6th, 1990 N 27 items 357. 362 Point 4 of the Governmental order of the Russian Federation from July, 4th, 2002 N 495 «About the Position statement about activity licensing on management of investment funds, share investment funds and not state pension funds»//SZ the Russian Federation from July, 8th, 2002, N 27, item 2707. nost, activity on upravle-niju the prices ths бумагами363 Hypothecary 364 The agent - - - - + + - - - - - - - - Insurance agents and insurance брокеры365 + + + + + + + Share биржа366 + + + As obviously follows from the table № 5, the Russian legislation gives to joint-stock company much more possibilities for realisation of enterprise activity, than to other organisation-legal forms. The second basis of occurrence of special franchise of joint-stock company - its voluntary narrowing by founders at society creation. If in the society charter the exhaustive (closed) list of kinds of activity in which it can be engaged, the transactions mismatching achievement of the authorised purposes is fixed, can be recognised by void (paragraph 1 of item 1 of item 49 and item 173 GK the Russian Federation). As the main objective of activity of all commercial organisations, including joint-stock companies as already was specified, consists in profit reception, investment of a society with special franchise consists in fastening of the exhaustive list of kinds of activity, that is narrowing of a subject of activity. In this connection it would be expedient to consider in the formulation of item 173 GK the Russian Federation that, 363 Item 4 FZ from April, 22nd, 1996 N 39-F3 «About a securities market»//SZ the Russian Federation from April, 22nd, 1996 N 17, item 1918. And Point 6 of the Decision of the Federal commission on a securities market from November, 23rd, 1998 N 50 «About the Position statement about licensing of various kinds of professional work on a securities market of the Russian Federation»//the Financial newspaper, December, 1998, № 51. 364 Item 8 FZ from November, 11th, 2003 N 152-FZ «About hypothecary securities»//SZ the Russian Federation from November, 17th, 2003 N 46 (a part II) item 4448. 365 Items 8 of the Law of the Russian Federation from November, 27th, 1992 N 4015-1 «About the organisation of insurance business in the Russian Federation»//RG from January, 12th, 1993 of Fund association are the noncommercial organisations (item 968 GK the Russian Federation). 366 Item 11 FZ from April, 22nd, 1996 N 39-F3 «About a securities market»//SZ the Russian Federation from April, 22nd, 1996 N 17, item 1918. That transactions of the legal person who are the commercial organisation, can be recognised by falling outside the limits its legal capacity not only in case of the contradiction to their purposes of activity (as it always profit extraction), but also in case of the contradiction to their subject of activity, as sets of separate kinds of activity. Accordingly, item 173 GK the Russian Federation can be stated in the following edition: «the Transaction made by the legal body in the contradiction with the purposes and-or a subject of activity, definitely limited in its constituent instruments, or the legal body who does not have the licence for employment by corresponding activity, can be recognised by court by void under the claim of this legal person, its founder (participant) or the state body which is carrying out the control or supervision of activity of the legal person if it is proved, that other party in the transaction knew or obviously should know about its illegality.» In item 18 of the Decision of Plenum of the Supreme Court of the Russian Federation and Plenum of the Supreme Arbitration Court of the Russian Federation № 6/8 from July, 1st, 1996 it is defined, that the commercial organisations, except for the unitary enterprises and other organisations, statutory, are allocated by the general legal capacity (item 49 GK the Russian Federation) and can carry out any kinds of the enterprise activity which has been not forbidden by the law if in constituent instruments of such commercial organisations the exhaustive (finished) list of kinds of activity in which the corresponding organisation has the right to be engaged does not contain. I LJA According to D.I.Dedova such interpretation GK the Russian Federation is disputable enough. As he said, even if in the joint-stock company charter the exhaustive (finished) list of kinds of activity in which the given joint-stock company has the right to be engaged contains, it should not lead to narrowing of the legal capacity of a society at all, based on the law. «Paragraph 2 of item 1 of item 49 of the Code resolves to the commercial organisations, including joint-stock company, to have the civil rights and to perform the civil duties necessary for performance of any kinds of activity, not forbidden by the law. 367 Decision of Plenum VS the Russian Federation and Plenum YOU the Russian Federation from July, 1st, 1996 N 6/8 «About some questions connected with application of a part first GK the Russian Federation»//the Bulletin YOU the Russian Federation, 1996, N 9. I AND 8 Legal regulation of activity of joint-stock companies (the Joint-stock right). The Manual. Under the editorship of the master of laws, senior lecturer E.P, Gubin, — M, 1999. With. 15 and further. From sense of paragraph 2 of item 1 of item 49 of the Code follows, that the society cannot limit itself the legal capacity on the basis of the decision of shareholders as the specified norm of the Code is imperative. Hence, the right to inclusion of any kinds of activity in the society charter should not entail any legal consequences ».369 Thus, it proves the point of view that only at the expense of charter positions to allocate a society with special franchise it is impossible (it the Russian Federation) contradicts item 2 of item 49 GK, and norms of the Law do not contain any cases (conditions) of narrowing of the legal capacity of joint-stock company. Indirect acknowledgement of the conclusion it finds and in item 2 of item 52 GK the Russian Federation, regulating maintenance of constituent instruments of legal bodies. The given norm specifies, that the subject and definite purposes of activity of the commercial organisations can be provided constituent instruments and in cases when under the law it is not obligatory. That is, according to D.I. Dedova, GK the Russian Federation «as though pays compliments inclusion of positions about the activity purposes in the charter of a society for clearing of interests of the founders connected with creation of a society and the further activity of a society (it is especially important in open joint-stock company where the big inflow of additional shareholders by means of release by a society of actions and placing among an unlimited circle of persons is expected), but any mention of kinds of activity of the commercial organisation directly and certainly would be unreasonable to connect with legal incapacity a clod - 370 mercheskoi the organisations ». It is necessary to notice, that in the same edition the opposite conclusion that «in the charter the norms defining a subject and the purposes of activity of concrete joint-stock company can contain, establishing borders of the civil legal personality of joint-stock company as legal person contains also. Thus, it is necessary to recognise lawful joint-stock company possibility to limit the legal capacity though and GK the Russian Federation, and the Law on joint-stock company provides for 369 In the same place. With. 16. A.A.Molchanov adheres to the Same opinion, for example. See: Molchanov A.A.civil pravosubeknost the commercial organisations: Dis.... D - rajurid. Sciences: 12.00.03 - SPb., 2002.-With. 72 »73. 70 Legal regulation of activity of joint-stock companies (the Joint-stock right). The Manual. Under the editorship of the master of laws, senior lecturer E.P.Gubin. - M, 1999. With. 16. In 1 The commercial organisation the general legal capacity ». It is necessary to agree with last statement, with one amendment. Fastening of the exhaustive list of kinds of activity in the charter attracts a special franchise establishment, instead of society legal incapacity. Possibilities to limit the legal capacity by actions of participants by the law really it is not provided. The majority of scientists recognise legitimacy of investment of joint-stock company (as well as any other not state commercial legal person) special franchise by fastening in its charter I settle - 372 shchego the list of kinds of activity which it can carry out. It is necessary to support such sight at the joint-stock company legal capacity. Thus, to fix narrower list of kinds of activity, transactions, than it is provided in the law, it is possible not only in comparison with the general (universal) legal capacity, but in comparison with the special franchise based on законе.373 In the latter case special character of the legal capacity is based on the law, but the volume of the legal capacity grows out of fastening in the charter of will of founders of a society. For example, the bank carries out not all possible on FZ «About banks and bank activity» kinds of bank operations but only some of them, or the insurance organisation carries out only property insurance. In case of fastening of the exhaustive list of kinds of activity in the charter, the legal capacity is special owing to will of participants of the legal person, wished to designate border of the legal capacity of the subject founded by them. At society creation the given decision should be accepted founders unanimously (item 9 of the Law on joint-stock company). It is obvious, that participants approve such decisions proceeding from the interests, as any person aspiring to satisfaction of own requirements. At joint-stock company creation these requirements carry in absolute bolshin - 371 In the same place. With. 24. 373 See, for example: Shapkin G. S. New in the Russian joint-stock legislation. Changes and Federal act additions «On joint-stock companies». M, 2002. With. 20; Eliseev I.V. (See: Civil law / under the editorship of JU.K.Tolstoy and A.P.Sergeeva. SPb., 1996. CH. 1. With. 113); Braginsky of M, JAroshenko K.Grazhdane (physical persons). Legal bodies. Comment GK the Russian Federation//the Economy and the right. 1995. № 2. With. 11. 373 Item 10 FZ from December, 2nd, 1990 N 395-1 «About banks and bank activity»//Sheets SND RSFSR from December, 6th, 1990 N 27 items 357. stve cases property character. Limiting a society field of activity, founders aspire to that their means enclosed in it ustavnyj the capital, worked most effectively. Otherwise, as marked G.F.Shershenevich, «in connection of persons the minority can be keen on the majority far for a purpose limit in view of which they have given in the general order the means» 374. In this connection, in order to avoid uncertainty, in the charter it would be expedient to specify in possibility (or impossibility) fulfilment by a society of transactions which unevidently serve achievement of the authorised purposes. Such custom has developed in the Great Britain, It was caused by practical necessity as frequently presence only the list of the purposes did not give the clear answer - whether the given transaction of its beyond legal capacity (ultra-vires) is or not. In the Memorandum, in article about the purposes 375 The companies join positions about competences which it can carry out. The concrete definition of possibility of fulfilment of transactions (actions) promotes understanding of a subject of activity and the purposes of creation of the given legal person, hence, to accurate delimitation of its legal capacity. The laws regulating separate kinds of activity frequently contain the norms defining that is understood as concrete activity, listing the transactions (operation) accessible to the given organisation. Are called as the transactions constituting directly the maintenance of the given kind of activity, and in addition resolved "accompanying" transactions, 376 The legal doctrine, and practice recognise, that the organisation with the special franchise established in the law or in constituent instruments, actually can always carry out «the accompanying transaction». M.M.Agarkov, analyzing authorised transactions of credit institutions, does the conclusion, that «the bank charter, naming any bank operation, usually has in view of not one any transaction, and a number of the possible transactions consolidated in a single whole from the point of view of the economic nature of operation... In spite of the fact that with legal these points of view 374 Shershenevich G. F. A civil law course. - Tula, 2001. With. 123-124. 375 See: Management of joint-stock company. The encyclopaedia of the international contract relations. - SPb., 1997. P. 40. 3 6 See, for example: item 5, 6 FZ from December, 2nd, 1990 N 395-1 «About banks and bank activity»//Sheets SND RSFSR from December, 6th, 1990 N 27 items 357.; item 1 FZ from August, 7th, 2001 N 119-FZ «About auditor activity»//SZ the Russian Federation from August, 13th, 2001, № 33 (the Part I), item 3422. Operations are various »377. D.V.Lomakin, investigating the maintenance of "usual economic activities» joint-stock companies (for revealing of large transactions), comes to conclusion, that exists two kinds of transactions: «) the transactions which are the integral element of the maintenance of such activity, other transactions accompanying them. Realisation of this or that kind of economic activities assumes necessity of the conclusion of transactions of the first group. As to transactions of the second group their main appointment consists in creation of necessary preconditions for the conclusion and execution of transactions of the first group by means of which their communication with usual economic activities of a society is carried out, for example, the credit contract for attraction of money for purchase of raw materials for production. The accompanying transaction predo - 378 predeljaetsja a kind of carried out activity ». Such sight is confirmed with the scientists investigating void transactions, made outside of the legal capacity of the legal person. D.Genkin underlined: «the circle of transactions which the organisation has the right to make, is not defined by any exhaustive list and not limited only to those transactions which are the basic maintenance of activity of this organisation. The organisation can make the diversified individual transactions, but under a condition if these transactions accompanying primary activity of the organisation, are dictated by the purpose of this organisation established in its charter or in position about it» 379. « Prohibition vneustavnyh transactions, - was underlined by S.N.bratus, - should not constrain the activity of the legal person directed on achievement of the purposes, put before it. The transactions made according to corporate purposes, should admit valid, at least in the charter and did not contain express indications on possibility of fulfilment of such transactions. In these cases most correctly to be guided by a following rule: not all that is not forbidden, is permitted, but also permitted not only that, chjao That is directly authorised the law » Analyzing the legal capacity of the legal person, I.A.Pokrovsk comes to 377 Agarkov M.M.Osnovy of the bank right. A course of lectures. The edition 2. The doctrine about securities. Scientific research. The edition 2. - M, 1994. With. 55. Lomakin D.V.large of the transaction in the civil circulation//the Legislation. 2001. № З.С.21. 379 D.Genkin. Invalidity of the transactions made with the purpose, illegal (Scientific notes VIJUN). Vyp. 5. M, 1947, p. 43. 380 bratus S.N. Subjects of civil law. M, 1950. With. 198. To conclusion, that the state should not supervise separate certificates of the legal person, even its unusual purposes (for example, charity for joint-stock company) until the being of the given legal person (industrial establishment varies will turn in charitable), «... The state has the right of the control to this case of full and regular change of the purposes 1Я1 And the terminations ». Thus, the establishment in the law or the charter of the exhaustive list of possible transactions is impossible and is unnecessary, however their approximate list allows to define better the purpose and a problem of activity of the legal person, and consequently, volume of its special franchise. 3.1.3. Change of volume and character of the legal capacity of joint-stock company. It is represented, that the decision on investment of joint-stock company with special franchise can be accepted participants not only at a stage of creation of a society, but also at any moment of its existence. Modification and additions in the charter of a society or the charter statement is in a new wording carried out under the decision of general meeting of shareholders by the majority in voices of shareholders-owners of the voting actions which are taking part in general meeting of shareholders, (item 12, subitem 1 of item 1 of item 48, and item 4 of item 49 of the Law on joint-stock company). Considering, that at meeting can be present only the part of shareholders possessing a poll more of half (at repeated meeting - more than 30 percent), change of the legal capacity of joint-stock company becomes possible and in the absence of unanimity of participants in this question. The given decision as a matter of fact represents already the decision not participants, and the society as the independent subject of law. That is, the joint-stock company, in the name of its bodies, has the right to make the decision on change of character and volume of the legal capacity. «Result of intracorporate democracy is that ? 5 © 2 The will of the majority becomes will of the organisation ». The operating Russian legislation (unlike pre-revolutionary) does not consider a case of change of a subject of activity of the legal person as uchre - Pokrovsk I.A.core of a civil law problem. M, 1998. With. 155 - 156. 382 Stepans P.Printsipy of regulation of corporate relations//the Economy and the right. 2002. № 4. With. 88. ditelnyj the certificate, that is as the certificate of creation of the new person, the new subject of law. If the decision on establishment and, accordingly, the charter at a creation stage is accepted the competent decision of general meeting (affirms) all participants unanimously the special majority of voices of its participants suffices for change of the charter of the existing organisation, that is. Thus, investment of joint-stock company with special franchise is made under the decision of different subjects of law, depending on the moment of acceptance of such decision. At creation of a society the charter unanimously affirms its founders, hence character and legal capacity volume are defined by participants of a society. Change of character and-or volume of the legal capacity of operating joint-stock company grows out of will of the legal person through its body - the general meeting, the made decision on modification (additions) in the society charter. Certainly, such change of the legal capacity, in which result a society is inadmissible cannot really execute the obligations properly. Importance of the given decision does not cause doubts, therefore it would be expedient to fix the right of shareholders in the Law on joint-stock company - owners of preference shares (as such decision in any case mentions or can mention their rights) to vote on the given question. Necessity of special fastening of the granted right is caused by that on general meeting shareholders - owners of preference shares of a society possess a vote only in cases, statutory about joint-stock company (item 49 of the Law on joint-stock company). In turn in the item 32 specified laws are provided, that at the decision on general meeting of shareholders of questions on modification and additions in the society charter (in particular, it can be change of character or legal capacity volume ^ the vote is got by shareholders - owners of preference shares of certain type, if changes made to the charter limit the rights of shareholders - owners of preference shares of this type (including cases of definition or increase in the size of the dividend and (or) definitions or increases in the liquidating cost, paid under preference shares of the previous turn, and also granting to shareholders - to owners of preference shares of other type of advantages in sequence of payment of the dividend and (or) liquidating cost of actions) (l paragraphs 2. 4 items 32 of the Law on joint-stock company). The general corrected consists that shareholders - owners of preference shares (that is all shareholders - owners of preference shares, and not just owners of certain type of preference shares) participate in general meeting of shareholders with a vote only at the decision of questions on reorganisation and society liquidation (paragraph 1 of item 4 of item 32 of the Law on joint-stock company). Thus, it is possible to state paragraph 1 of item 4 of item 32 in the following edition: «Shareholders - owners of preference shares participate in general meeting of shareholders with a vote at the decision of questions on reorganisation, liquidation, and also change of a subject of activity of a society». Such rule will allow to protect interests of owners of preference shares, having given to them a vote at decision-making on change of character and-or volume of the legal capacity of a society, having eliminated uncertainty of a question on that, their rights are limited to new edition of the charter or not. As to creditors of a society, the law does not oblige joint-stock company to notify them on the taken place decision as it occurs in case of reorganisation. According to item 14 of the Law on joint-stock company of change and addition in the charter of a society or the society charter in a new wording come under to the state registration and become operative for the third parties from the moment of their state registration. It is represented, that it is necessary to notify on the taken place decision of creditors which should have an opportunity to demand change or contract cancellation according to item 451 GK the Russian Federation if the joint-stock company legal status has really essentially changed. Article 52 GK the Russian Federation regulates the maintenance of constituent instruments of legal bodies, including in case of investment of the commercial organisations with special franchise, and also an order of coming into force of changes and the additions brought in constituent instruments. It is possible to add given article with the norm obliging participants of the legal person in writing to notify creditors about taken place change of character and-or volume of the legal capacity of the legal person. It is obvious, that the return situation is quite admissible also. The joint-stock company can expand volume of authorised special franchise and even to change special franchise to the general. Statutory special franchise also can be expanded (or, on the contrary, its volume can decrease) if it is not forbidden zako - nom, regulating the given kind of activity. If the right to be engaged in additional kinds of activity is connected with licensing, such licence is a condition of expansion of the legal capacity of the organisation. For example, the credit organisation for expansion of activity by reception of licences for realisation of bank operations should answer provided by normative acts of Bank of Russia to conditions. The bank can expand the activity by reception of additional licences for other kinds of bank operations. The order and conditions of delivery of additional licences is established in normative acts of Bank of Russia. On the contrary, FZ «About hypothecary securities» 384 establishes, that in the charter of the hypothecary agent the subject and the purpose of its activity according to the law should be defined, entering into the charter of the hypothecary agent of changes and (or) the additions connected with change and (or) addition of a subject or the purpose of its activity, is not supposed. Hence, the joint-stock company has the right to change volume (towards reduction or increase) the special franchise based on positions of the charter by modification of the charter. The society also has possibility to change character of the legal capacity based on the charter: to change corresponding positions of the charter, having fixed the exhaustive list of kinds of activity of a society (that is to change the general legal capacity on special), or on the contrary - to eliminate restrictions (to change special franchise to the general). The analysis of the legislation regulating exclusive kinds of activity does not allow to come to conclusion, that there is an unlimited possibility to change character and-or volume of the legal capacity based on the law, by updating of positions of the charter (for example to change a subject of activity of bank and to start to carry out other kinds of activity). Change of character and volume of the special franchise based on the law supposes only in cases if it is not forbidden or it is directly authorised regulatory legal acts. Thus, under the operating Russian legislation, joint-stock 383 Point 13.1 and further Instructions of the Central Bank of Russia from January, 14th, 2004 N 109 «About the method of adoption Bank of Russia of the decision on the state registration of the credit organisations and delivery of licences for realisation of bank operations»//the Bulletin of Bank of Russia from February, 20th, 2004 № 15. 384 Paragraph 4 of item 1 of item 8 FZ from November, 11th, 2003 N 152-FZ «About hypothecary securities»//SZ the Russian Federation from November, 17th, 2003 N 46 (part) of item 4448. The society possesses the general legal capacity, thus a main objective of its activity there should be an activity directed on extraction of profit. Founders can allocate joint-stock company with special franchise in two ways: or by fastening in the charter of the exhaustive list of admissible kinds of activity, or by a choice of such kind of enterprise activity at which realisation the law does not suppose combination. The concrete volume of the special lawful legal capacity depends on legislative fastening of principles of combination and from intentions of participants. With a view of specification of volume of the legal capacity it is desirable to include the approximate list of the transactions in the charter, which society has the right to carry out. The joint-stock company in the course of the activity has the right to change character of the legal capacity if it is not forbidden by the law, and also special franchise volume, as towards its expansion, and narrowing. Such decision should be accepted special majority of shareholders-owners ordinary and preference shares, and to be accompanied by the notice of creditors on the taken place change of volume of the legal capacity. Legal incapacity and capacity of a society is supposed on the bases, statutory. At licence reception, depending on a kind of licensed activity to qualify the given relations it is possible or the element of the set of facts necessary for employment by a certain kind of activity within the limits of the general legal capacity, or as investment with special franchise (the licence for employment by an exclusive kind of activity), or as investment with the additional legal capacity (the licence for employment by the activity kind which realisation is not authorised the law to the usual subject of law).
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A source: Polygalova Natalia Alekseevna. JOINT-STOCK COMPANY LEGAL CAPACITY UNDER the LEGISLATION of the RUSSIAN FEDERATION: CHARACTER, VOLUME And DYNAMICS. The dissertation.. 2005

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